CALIFORNIA COURT OF APPEAL HOLDS CUNNINHAM ERROR IS HARMLESS
The Court of Appeal here admits that the reliance by the trial court about facts relating to the crime as the justification for imposition of the upper term in prison violated Cunningham (127 S.Ct. 856), since those facts weren't found true by the jury.
They then find harmless error. How? Well there was all this evidence in support of the aggravating factors found by the judge. This is just so, so wrong. If the judge denies a
defendant a jury trial, can the resulting conviction be affirmed on the basis that the evidence was so overwhelming that a jury would have convicted anyway? Wrong.
People v. Curry; 2008 DJ DAR 201; DJ, 1/9/08; C/A 3rd
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